The INS has released regulations regarding adjustment of status to permanent residency under the Nicaraguan and Central American Relief Act (“NACARA”). The regulations are scheduled to become effective on June 22, 1998. Comments may be submitted until July 20, 1998. INS also released regulations regarding motions to reopen under NACARA. These regulations became effective on June 11, 1998. Written comments may be submitted until July 13, 1998.
Adjustment of Status Regulations
A Cuban or Nicaraguan national who has been physically present within the U.S. since December 1, 1995 may be eligible for adjustment of status under NACARA. The person must be admissible into the U.S. However, certain grounds for inadmissibility do not apply. These include excludability grounds such as being a public charge, being present in the U.S. without being admitted or paroled, failing to meet various document requirements, and aliens unlawfully present for more than six months or one year.
Periods spent outside the U.S. must not exceed 180 days in the aggregate between December 1, 1995 and the date that adjustment is granted unless the absence is pursuant to advance parole. The individual must submit an application to the Texas Service Center between June 28, 1998 and March 31, 2000. Unless a person has been outside the U.S. for more than 180 days, he/she can apply for parole authorization to come into the U.S. to apply for adjustment of status under this rule.
Physical presence within the U.S. may be shown with documents specified in the regulations. These include: application for asylum, order to show cause or commencement of exclusion proceedings, application for adjustment of status, application for employment authorization, employment earnings recorded by the Social Security Administration, application for any other immigration benefit or other documentation issued by state and local authorities. These documents must not show a time gap of more than 90 days.
Spouses, children under 21 and older unmarried children are eligible for adjustment of status if they are Nicaraguan or Cuban nationals, can prove the required relationship with the principal beneficiary and are admissible. NACARA dependents must be physically present in the U.S. to apply for adjustment of status, but only those over 21 years of age must prove continuous presence since December 1, 1995. Spouses and unmarried children of NACARA applicants who reside outside the U.S. may apply for parole into the country to apply for adjustment of status.
Individuals with cases pending before an Immigration Judge (IJ) or who filed a motion to reopen prior to May 22, 1998 may file for NACARA adjustment with the immigration court. Applicants’ appeals pending before the Board of Immigration Appeals (BIA) should be remanded to the IJ for adjudication of NACARA adjustment. Persons subject to final orders of deportation or removal can still apply for NACARA adjustment before an IJ or the INS, but they may need to apply for a stay of removal first.
Motion to Reopen Regulations
Under NACARA an alien may file one motion to reopen removal or deportation proceedings. The regulations regarding motions to reopen define who is eligible for “special rule” cancellation of removal or suspension of deportation under NACARA and allow an alien to file a motion to reopen pursuant to NACARA initially without an application for suspension or cancellation and supporting documents.
The rule provides that a motion to reopen under NACARA must show that the individual satisfies four requirements – 1) that the individual is prima facie eligible for suspension of deportation pursuant to the INA (as in effect prior to April 1, 1997) or cancellation of removal pursuant to NACARA and 2) is ineligible for suspension of deportation pursuant to IIRIRA (as in effect prior to November 19, 1997) or for cancellation of removal pursuant to the INA, but for NACARA and 3) has never been convicted of an aggravated felony and 4) is of a nationality covered by NACARA.
To prove prima facie eligibility for suspension of deportation or cancellation of removal, the alien must have been continuously physically present within the U.S. for at least the seven years immediately preceding the application date. He or she must be a person of good moral character during that time, and must prove that deportation or removal would result in extreme hardship to himself ir herself or to his or her spouse, parent, or U.S. citizen or lawful permanent resident child. In addition, the alien must not be subject to any statutory bars to seeking suspension of deportation or cancellation of removal because these bars are not waived by NACARA.
In addition, any alien eligible to file a motion to reopen under NACARA can do so initially without filing an application for suspension of deportation or cancellation of removal. The alien will then have until February 8, 1999 to file the application and supporting documents. The motion will be adjudicated only after the application has been completed and filed. If the alien does not file the completed application, the motion will be deemed abandoned and denied. The application fee for NACARA-based motions to reopen is waived.
Disclaimer: This newsletter is provided as a public service and not intended to establish an attorney client relationship. Any reliance on information contained herein is taken at your own risk.